Editorial: Partisanship and hyperbole in the House GOP

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Milford Daily News

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Posted Jul. 23, 2014 at 11:22 PM

Posted Jul. 23, 2014 at 11:22 PM

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Claiming that President Barack Obama "believes he has the power to make his own laws," House Speaker John A. Boehner, R-Ohio, is preparing a lawsuit against the president. Is the proposed lawsuit a reaction to an aggressive use of executive power or a political stunt likely to be tossed out of court? Actually, it's both.

Obama at times has pushed the limits of his authority, including on the issue that is the subject of the proposed lawsuit: his unilateral decision to postpone, twice, the Affordable Care Act's requirement that larger employers provide coverage for their workers. That decision was troubling, but then again an unreasoning Republican resistance made it impossible for Obama to gain congressional cooperation in improving the law.

But even if one believes Obama overstepped his authority, a lawsuit by the House is a legal long shot. As Walter Dellinger, a former acting solicitor general in the Clinton administration, told the House Rules Committee last week, citizens can seek redress in the courts for "personal, particularized" and "concrete" injuries they've suffered as a result of government action. But the courts do not exist for the purpose of "intruding into disputes between the elected branches of government" on how laws should be interpreted or implemented.

The courts haven't completely barred Congress from opposing the president in court. Citing special circumstances, the Supreme Court allowed lawyers for the House to argue for the constitutionality of a provision of the Defense of Marriage Act that the Obama administration had declined to defend. But that case involved a suit by a private individual against the United States, not a lawsuit brought by one branch against another.

If Congress is aggrieved by what it sees as overreaching by the president, it has other options spelled out by Justice Antonin Scalia in his dissenting opinion in the DOMA case, including the elimination of funding.

Finally, if Republicans really believe that Obama has persistently violated his constitutional obligation to "take care that the laws be faithfully executed," they can initiate impeachment proceedings. We hasten to add that we don't think Obama has committed impeachable offenses - but neither, apparently, does Boehner, despite his apocalyptic rhetoric. Indeed, one theory is that he devised this lawsuit as a way to dampen enthusiasm for impeachment among the hotter heads in his caucus, lest they alienate swing voters in the upcoming midterm election.

That explanation only underlines the political nature of the proposed action. Its slim prospects of success aside, this nuisance suit vindicates the House Republicans' reputation for hyperbole and hyperpartisanship. It's a losing proposition in more ways than one.